ENVIRONMENTAL UTILITIES CORPORATION

OSHRC Docket No. 3141

Occupational Safety and Health Review Commission

February 6, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Marshall H. Harris, Regional Solicitor, USDOL

Kenneth L. Oliver, Jr., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

A decision of Administrative Law Judge Abraham Gold is before the full Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter cited as "the Act"]. Judge Gold vacated the allegation of a willful violation of 29 CFR 1926.652(b) [hereinafter 1926.652(b)], n1 modified the citation to allege an other than serious violation of the standard, and affirmed it as modified. A penalty of $800 was assessed for the other than serious violation.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The text of this standard appears infra.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The case is before us on the following issues:

(1) Whether the Administrative Law Judge erred in holding that the Secretary failed to prove a willful violation?

(2) Did the Administrative Law Judge err in holding that a serious violation could not be found when the Secretary [*2] failed to so plead in the alternative?

(3) Assuming the holding in number (2) above was proper, did the Administrative Law Judge err in finding a non-serious violation?

Having considered the entire record, including the briefs submitted by the parties, we affirm Judge Gold's decision as modified below.

On May 8, 1973, respondent, Environmental Utilities Corp., operated and controlled a worksite at 121 Whitney Road, Manor Township, Pennsylvania. At this site respondent was performing trenching work for the installation of sewer lines. In the process of digging one trench, respondent's backhoe struck and severed a water line. Respondent's foreman began repairing the break but discovered that he did not have some necessary parts. He left the worksite to secure the parts at a local plumbing supply house.

Before leaving the worksite, however, the foreman ordered the backhoe operator to dig another trench four or five feet from the original trench. This new trench was completed during the foreman's absence whereupon two of respondent's laborers entered the trench and began shovelling away the backfill covering the main sewer line. After about five minutes the south side of the [*3] trench collapsed, trapping both men and killing one of them.

The safety standard at 1926.652(b) provides:

1926.652 Specific trenching requirements.

* * *

(b) Sides of trenches in unstable or soft material 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them.

Before its collapse, the trench was approximately 12 feet long, 2 feet wide, and 6 1/2 feet deep at one end and 9 1/2 feet deep at the other end. The sides of the trench were not shored, sheeted, braced, sloped, or otherwise supported to secure the trench against collapse. Also the sides of the trench were in damp clay, an unstable or soft material within the meaning of 1926.652(b). It is clear from the above that, as Judge Gold held, the cited trench failed to comply with 1926.652(b). We adopt his findings and conclusions to this effect.

The Secretary, however, alleges that the described violation of the standard is "willful" within the meaning of section 17(a) of the Act. n2 The Secretary concedes that the foreman did not order the two laborers into the unprotected trench inasmuch as the foreman [*4] was absent from the worksite. The Secretary nevertheless maintains that respondent through its foreman willfully violated the Act by failing to order the laborers not to enter the trench before it was protected against collapse. It is urged that the foreman's inaction was a willful violation because the two laborers remaining at the jobsite were relatively new employees whose work experience and work habits were unknown to the foreman. n3

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 Section 17(a) reads as follows:

Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation.

n3 Respondent's foreman admitted that he did not know the employment experience of the two employees. The record also showed that the deceased employee had been hired only three hours before the cave-in. The surviving employee had worked for respondent on an intermittent basis for two weeks before the accident.

- - - - - - - - - - [*5] - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Judge Gold agreed with the Secretary that the facts showed misjudgment on the part of the foreman. Yet the Judge stated that:

The misjudgment which colored the conduct of the foreman falls short of showing a conscious, deliberate violation, nor does it establish that he purposely disregarded the standard or was utterly indifferent to it. A willful violation has not been shown.

We agree. n4 Nothing in the record indicates that the foreman either ordered the laborers to work in the unguarded trench, or permitted them to do so. Indeed, it was shown that the foreman expected to return to the jobsite before the digging of the new trench was to be completed and that he was unexpectedly delayed at the plumbing supply house. Accordingly, we affirm the vacating of the citation for a willful violation of 1926.652(b).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 The Judge's definition of the term "willful" violation is in accord with that applied by the courts in Frank Irey, Jr., Inc. v. O.S.H.R.C., 519 F.2d 1200 (3d Cir. 1975); F.X. Messina Constr. Corp. v. O.S.H.R.C. & Brennan, 505 F.2d 701 (1st Cir. 1974); Intercounty Constr. Co. v. O.S.H.R.C. 522 F.2d 777 (4th Cir. 1975), petition for cert. filed, 44 U.S.L.W. 3249 (U.S. October 17, 1975) (No. 75-594).

[*6]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Although the evidence did not show a willful violation, the question remains as to whether the respondent employer could be found to have committed a violation other than willful. Judge Gold concluded that an other than "serious" violation was included in the allegation of a willful violation of 1926.652(b). He stated:

The instant willful violation accusation is divisible into two distinct parts: (1) violation of the standard and (2) willfulness. Despite the failure of the Secretary of [sic] prove willfulness, Respondent can still be found to have violated the standard. It is unnecessary for the Secretary to specifically plead that an employer stands charged with a nonserious violation; in the case at hand, the Secretary need only set out sufficient allegations constituting a violation of the cited standard (emphasis supplied).

Our decision in Toler Excavating Co., No. 2637 (July 29, 1975) is in accord with this statement. See also Brennan v. O.S.H.R.C. & Vy Lactos Laboratories, Inc., 494 F.2d 460 (8th Cir. 1974). The Judge, however, also stated that in the event a willful [*7] violation was not established, a "serious" violation could not be found because the Commission "cannot reach beyond the charges laid by the Secretary in his pleadings. . . ." This was error.

In Toler Excavating Co., supra, the Commission ruled:

. . . [W]hen a respondent is charged only with a willful violation and the evidence establishes a violation which is not willful, a nonserious violation may be affirmed but, ordinarily, a serious violation may not be. An exception to this rule exists when the issue of whether the violation is serious is tried by the express or implied consent of the parties. National Realty & Constr. Co., Inc. v. OSAHRC, 489 F.2d 1257, 1264; Fed. R. Civ. P. 15(b) (footnote omitted).

Although the Judge concluded that an other than serious violation was established, he failed to consider whether the parties tried by implied consent the issue of whether the violation was serious. We have examined the record, and hold that this issue was tried by the parties.

In his findings of fact Judge Gold found that:

Since the foreman did not know the work experience or work habits of the two employees, one of them having been hired that morning and the [*8] other having worked for him only a matter of some days, the foreman should have left specific orders for the men not to work in the trench until his return or until the trench sides were properly shored, sloped or otherwise appropriately supported.

Such a finding indicates the trial of the issue of whether respondent, with the exercise of reasonable diligence, could have known of, and averted, the employees' entry into the unprotected trench. We find, therefore, that the knowledge element of a serious violation was tried by the parties. n5 Moreover, we adopt the Judge's finding that respondent, through its foreman, should have known of the violation.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 My own view is that actual or constructive knowledge of a violative condition is not an element of a "serious" violation. Rather, absence of such knowledge is a defense to be affirmatively established by an employer. See D.R. Johnson Lumber Co., 17 OSAHRC 426, 3 BNA OSHC 1124, 1974-75 CCH OSHD para. 19,695 (No. 3179, April 25, 1975) (dissenting opinion). See also Atlas Roofing v. O.S.H.R.C. & U.S. Department of Labor, 518 F.2d 990 (5th Cir. 1975).

[*9]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In order to establish a serious violation, the additional issue of whether there was a substantial probability that death or serious physical harm could result from the violative condition must be tried by the parties. At the outset of the hearing, respondent's attorney framed the issue to be tried as "whether or not there was a willful serious violation (emphasis added). . . ." In addition, the Secretary's assistant area director testified that if an accident did occur at this trench it could result in death or serious physical harm. No evidence was offered by respondent rebutting this testimony. From the above, we find that the parties tried the issue of whether the violative condition could result in death or serious physical harm. We also find that the evidence establishes the requisite likelihood of death or serious physical harm. Accordingly, we modify the Judge's report, amend the pleadings, and find that a serious violation of 1926.652(b) was shown.

As noted, Judge Gold assessed an $800 penalty for an other than serious violation of 1926.652(b). The Judge's assessment reflects [*10] due consideration of the size of respondent's business, the gravity of the violation, the good faith of respondent and its lack of history of previous violations. We adopt his assessment.

Accordingly, it is ORDERED that:

1. The vacating of the citation for willful violation of 1926.652(b) is affirmed.

2. The citation and complaint are amended to allege a serious violation of 1926.652(b).

3. The amended citation for serious violation of 1926.652(b) is affirmed and an $800 penalty is assessed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

I would affirm Judge Gold's disposition of this case. Haggling over whether a violation is "serious" or "nonserious" is senseless.

As I have previously indicated in Secretary v. California Stevedore and Ballast Company, 4 OSAHRC 642, 647 (1973), and Secretary v. Portland Stevedoring Company, 3 OSAHRC 1077, 1079 (1973), there is no practical difference between "serious" and "nonserious" violations. Both can incur penalties of identical scope. The maximum assessment for a violation whether labeled "serious" or "nonserious" is $1,000.00, and no minimum is specified in the Act. Furthermore, contrary to Commissioner Cleary's view expressed [*11] in footnote 5 of the Commission decision, knowledge of an alleged violative condition is an essential element of both types of violations. Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975); Secretary v. Cam Industries, Inc., 7 OSAHRC 30, 36-38 (1974); Secretary v. Mountain States Telephone & Telegraph Company, 2 OSAHRC 168 (1973).

Since there is no practical difference between the two, the Commission should not waste its time in adjudicating the question. The futility of this exercise is illustrated by this case. The Commission, which has ruled that the Judge erroneously characterized the violation as nonserious, has assessed the exact same penalty that was assessed by the Judge - $800.00.

Since this decision does not cover all matters discussed in Judge Gold's decision, the same is attached hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

Matthew J. Rieder, for Complainant [*12]

J. Anthony Messina and Kenneth L. Oliver, Jr., for Respondent

This case arose under 29 U.S.C. 659(c) and was heard on December 5 and 6, 1973, at Lancaster, Pennsylvania. Respondent was cited on May 18, 1973, for a willful violation of the safety standard at 29 C.F.R. 1926.652(b), and a penalty of $8,000 was proposed.

Respondent corporation engages in the business of construction, including the installation of sewer lines; it maintains its principal office and place of business at Amsterdam, New York; on May 9, 1973, compliance officers of the Department of Labor investigated Respondent's worksite at 121 Whitney Road, Manor Township, Lancaster County, Pennsylvania (prefatory para. in Respondent's Ans; Ans. to II, IV).

The complaint alleges that on or about May 8, 1973, Respondent willfully violated 29 C.F.R. 1926.652(b) in that the sides of a lateral trench in unstable or soft material five feet or more in depth, located at house #121, Whitney Road, Manor Township, Pennsylvania, were not shored, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within.

The standard reads:

Subpart P - Excavations, Trenching, and Shoring [*13]

* * *

1926.652 Specific trenching requirements.

* * *

(b) Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. See Tables P-1, P-2 (following paragraph (g) of this section).

[SEE ILLUSTRATION IN ORIGINAL]

TABLE P-2

TRENCH SHORING -- MINIMUM REQUIREMENTS

Size and spacing of members

Uprights

Stringers

Cross braces n1

Width of trench

Kind or

Depth of

condition

Minimum

Maximum

Minimum

Maximum

 Up to 3

 3 to 6

trench

of earth

dimension

spacing

dimension

spacing

feet

feet

Feet

Inches

Feet

Inches

Feet

Inches

Inches

5 to 10

Hard, compact

3X4 or 3X6

6

3X6

4X4

Likely to

3X4 or 3X6

3

4X6

4

3X6

4X4

crack

Soft, sandy,

3X4 or 3X6

Close

4X6

4

4X4

4X6

or filed

sheeting

Hydrostatic

3X4 or 3X6

Close

6X3

4

4X4

4X6

pressure

sheeting

10 to 15

Hard

3X4 or 3X6

4

4X6

4

4X4

4X6

Likely to crack

3X4 or 3X6

3

4X6

4

4X4

4X6

Soft, sandy,

3X4 or 3X6

Close

4X6

4

4X6

6X6

or filed

sheeting

Hydrostatic

3X6

Close

8X10

4

4X6

6X6

pressure

sheeting

15 to 20

All kinds or

3X6

Close

4X12

4

4X12

6X8

conditions

sheeting

Over 20

All kinds or

3X6

Close

6X8

4

4X12

8X8

conditions

sheeting

[*14]

TABLE P-2

TRENCH SHORING -- MINIMUM REQUIREMENTS

Size and spacing of members

Cross braces n1

Width of trench

Maximum Spacing

Kind or

Depth of

condition

6 to 9

9to 12

13 to 15

Vertical

Horizontal

trench

of earth

feet

feet

feet

Feet

Inches

Inches

Inches

Feet

Feet

5 to 10

Hard, compact

4X6

6X6

6X3

4

6

Likely to

4X6

6X6

6X6

4

6

crack

Soft, sandy,

6X6

6X3

3X3

4

6

or filed

Hydrostatic

6X6

6X3

3X3

4

6

pressure

10 to 15

Hard

6X6

6X3

3X8

4

6

Likely to crack

6X6

6X3

3X8

6

Soft, sandy,

6X8

8X3

8X10

4

6

or filed

Hydrostatic

6X3

8X3

8X10

4

6

pressure

15 to 20

All kinds or

8X8

8X10

10X10

4

6

conditions

Over 20

All kinds or

8X10

10X10

10X12

4

conditions

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Trench jacks may be used in lieu of, or in combination with, cross braces.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Shoring is not required in solid rock, hard shale, or hard slag.

Where desirable, steel sheet piling and bracing of equal strangth may be substituted for [*15] wood.

29 U.S.C. 654(a)(2) requires that each employer comply with occupational safety and health standards promulgated under the Act.

Under Section 666(a), an employer who willfully or repeatedly violates the Act may be assessed a civil penalty of up to $10,000 for each such violation.

Pursuant to 29 U.S.C. 666(d), an employer shall be assessed a civil penalty of up to $1,000 for each serious violation.

Section 666(c) provides that an employer may be assessed a civil penalty of up to $1,000 for each nonserious violation.

Civil penalties shall be assessed only after considering the size of the business of the employer, the gravity of the violation, the good faith of the employer, and the history of previous violations. 29 U.S.C. 666(j).

29 U.S.C. 666(k) declares that "a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, [*16] know of the presence of the violation."

The Act furnishes no definitions for nonserious, repeated, or willful violations.

Respondent has moved for dismissal for lack of jurisdiction, claiming that the record fails to show that Respondent engages in a business affecting commerce. Respondent has its principal office and place of business in the State of New York; it operated a worksite in Pennsylvania. Its New York office could not maintain its relationship and contact with its Pennsylvania operation without the use of the mails and facilities of interstate commerce. Communication between the two places of operation by correspondence and/or long-distance telephone calls, which must be transmitted across state lines, were obviously vital to Respondent's business. Such interstate communication of a business nature is sufficient basis for the finding that Respondent engaged in a business affecting commerce. North American Co. v. S.E.C., 327 U.S. 686 (1946). The motion is denied.

In another motion for dismissal Respondent contends that the complaint lacks sufficient particularity to enable it to prepare a defense. This contention is without merit, and the motion is denied. [*17]

On the afternoon of May 8, 1973, the south side of the trench under consideration collapsed, trapping two of Respondent's employees, laborers Larry Heath and Larry Gable, taking the life of Heath (Tr. 20, 98-102, Exhs. C-1, C-2, R-2).

The trench was 12 feet long, 2 feet wide, about 6-1/2 feet deep at the curb and 9-1/2 feet at the center of the street (Tr. 150). The soil was damp (Tr. 68, 109, 151). It rained on May 8, 1973 (Tr. 68, Exh. C-7); and a water line, which was two feet from the trench, had broken and at the time of the accident and bottom of the trench had an accumulation of at least a half foot of water (Tr. 73). The soil was basically clay (Tr. 17, 67, 97, 109, 163, 186).

The trench walls were vertical, and were not shored, sheeted, or braced (Tr. 21, 73, 98).

Shortly after lunch on May 8, 1973, Herbert Miller, a backhoe operator employed by Respondent, started digging this particular trench for the installation of a lateral sewer line when the backhoe struck a water line at the three-foot depth (Tr. 71, 143); the water line was pinched shut and the water was removed by bucket (Tr. 144). Since the foreman, George Wilson, was unable to repair the line because he [*18] did not find parts that fit the line, he told his men that he was going to go to a plumbing supply house to get the parts and ordered the operator to move away a few feet and dig another trench (Tr. 109, 147). He left no instructions for Heath or Gable when he left by truck for the supply house, merely saying that he would be right back (Tr. 172).

Mr. Wilson asserted that before departing he told backhoe operator Miller to slope the trench (Tr. 172); that he had standard instructions for his men not to enter a trench until it had been sloped or shored and that he would "let no man go in the ditch unless it was sloped out or shored" (Tr. 176). It was his testimony that he expected to be back from the supply house within 15 minutes, whereas he figured it would take 30 to 45 minutes for the backhoe operator to dig the trench (Tr. 176-177). However, he was delayed unexpectedly when the supply house encountered difficulty in locating the necessary parts, which were eventually found on a service truck after a futile search of the stockroom (Tr. 149-150). When he returned to the jobsite, the cave-in had already occurred (Tr. 150).

During Wilson's absence, the backhoe operator completed [*19] the digging of the trench (Tr. 106), and laborers Heath and Gable then entered the trench to shovel away the backfill which covered the main line to which the lateral sewer line was to be connected (Tr. 72). They dug for only 5-10 minutes when the accident occurred (Tr. 74).

The deceased had started to work for Wilson, for the first time, at about 11:00 a.m. on the day of the cave-in, which occurred shortly after 2:00 p.m. (Tr. 173-174). The other laborer, Gable, had worked for Wilson for a couple of weeks but had been off several times during that period (Tr. 157). Wilson admitted that he did not know the employment experience of either employee (Tr. 173-174).

Actually, Heath had been employed in sewer construction work since October 1971, and Gable had been a construction worker since August 1972 (Exh. R-3).

Wilson admitted knowing the trenching standards (Tr. 171), and claimed that he had told Miller to "V" (slope) that trench (Tr. 172). He testified that it did not occur to him that the two laborers might go into an unshored, unsloped trench (Tr. 175); that he thought Gable got into the trench in order to get the job done as quickly as possible so that he could go somewhere [*20] with his friend Smith (Tr. 175). As Gable told the story, Smith worked nearby for another company which had "knocked off early on account of the rain;" Gable spoke to Smith about going fishing and asked Smith to come to Respondent's worksite to wait for Gable (Tr. 84). Smith related that he was standing near the edge of the trench as Heath and Gable were digging (Tr. 98); that he saw the ground fall away from the top, pinning the workers (Tr. 101-102); that he shouted when he saw the trench begin cracking; that the men were bent over and "started to straighten up, but by that time it was already in." (Tr. 100).

In his testimony, Wilson declared that he had been a foreman since 1941 and that this was his first trench cave-in (Tr. 177).

Leon Brubaker, who operated a small backhoe at the site under the supervision of Wilson, said that he had dug two lateral trenches on May 8, 1973, and that those two trenches were sloped; that Wilson always required sloping or shoring; that Wilson spoke to the men almost daily about safety (Tr. 181).

Brian Kepley, another member of Wilson's crew, employed as a pipe layer, testified that it was the practice always to slope, shore, or use a trench [*21] box (Tr. 197).

Wilson's truck contained trench jacks, and there were three other trench jacks at the construction site a couple of hundred feet from the trench (Tr. 75, 162, 163). Although Gable insisted that he did not remember whether he had been told to enter the trench or whether it was his own decision to do so (Tr. 95), it is felt that the record, viewed in its entirety, supports a finding that he did so on his own, so as to enable him to get through work soon enough to go fishing with his friend. The laborers were paid on an hourly basis (Tr. 146); there was no monetary reason for them to rush into the trench in the absence of the foreman.

It is the contention of Respondent that it did not willfully violate the safety standard, and it takes the position that the entry of the laborers into the trench was contrary to common sense and totally unexpected. The sides of the trench were over five feet deep and were composed mainly of clay, an unstable or soft material. The sides were not shored, sloped, or otherwise adequately supported. Foreman Wilson was supervising two laborers whose work experience and work habits were unknown to him. In such situation, prudence dictates [*22] that prior to his departure he should order the men not to work in the trench until his return from the supply house. He was in no position to predict their conduct in his absence; it was his duty to leave orders for them. The laborers were not acting in defiance of, or contrary to, the orders of management; they were acting without orders. The foreman's inaction in this regard is imputed to Respondent, and Respondent is chargeable with a violation of the cited standard. However, in order to establish a willful violation, Respondent must show that Respondent violated the standard consciously, intentionally, deliberately, or voluntarily n1 or deliberately disregarded the standard or was plainly indifferent to its requirements. n2 Respondent, acting through its foreman, knew of the requirements of the standard, but this record does not establish that Respondent's foreman either ordered the laborers to work in the unsafe trench or that he expressly permitted them to do so. This record does not demonstrate that Respondent intended to violate the standard. The misjudgment which colored the conduct of the foreman falls short of showing a conscious, deliberate violation, nor does it [*23] establish that he purposely disregarded the standard or was utterly indifferent to it. A willful violation has not been shown.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Levy v. United States, 140 F. Supp. 834, 836 (W.D. La. 1956)

n2 United States v. Ill. Central R. Co., 303 U.S. 239 (1938)

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

This brings us to the question of whether Respondent can be found to have committed a violation other than willful, where the Secretary has failed to establish willfulness. The citation and complaint charge Respondent only with a willful violation; no mention is made of a serious violation, nor are the necessary elements of a serious violation n3 alleged in the pleadings.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 A violation is serious only if there is a substantial probability that death or serious physical harm could result from the violation unless employer did not, and could not with the exercise of reasonable diligence, know of the violation, 29 U.S.C. 666(k).

- - - - - - - - - - - - - - - - [*24] -End Footnotes- - - - - - - - - - - - - - - - -

Since the Commission and its Judges cannot reach beyond the charges laid by the Secretary in his pleadings, Respondent cannot be found to have committed a serious violation. However, the employer remains open to the charge of a violation of other than a serious nature. The instant willful violation accusation is divisible into two distinct parts: (1) violation of the standard and (2) willfulness. Despite the failure of the Secretary of prove willfulness, Respondent can still be found to have violated the standard. It is unnecessary for the Secretary to specifically plead that an employer stands charged with a nonserious violation; in the case at hand, the Secretary need only set out sufficient allegations constituting a violation of the cited standard. Respondent's motion for dismissal of the citation in its entirety in the event of a finding that a willful violation has not been established is denied.

Respondent, acting through its foreman, could have averted the tragedy merely by taking the precautionary step of ordering the laborers not to work in the trench until it had been safeguarded by shoring, sloping or other means. [*25] On the facts present herein, it is found that Respondent must be, and is, held responsible for a nonserious violation of the standard.

The violation is of a very high level of gravity, as evidenced by the death of one of the workmen trapped by the cave-in. There is no evidence of previous safety violations by Respondent. Respondent's operation is of medium size. Apparently, the safety program of the employer could stand strengthening. Upon consideration of all the criteria listed in 29 U.S.C. 666(j), it is found that a penalty of $800 is appropriate for this violation.

Findings of Fact

1. Respondent is a corporation with its principal office and place of business in the State of New York, engaged in construction work including excavation and the installation of sewer lines.

2. On May 8, 1973, Respondent operated a worksite at 121 Whitney Road, Manor Township, Pennsylvania, where it was performing excavation work and installing sewer lines.

3. Respondent's New York office and its operation in Pennsylvania engaged in interstate communication of a business nature.

4. Respondent engages in a business affecting commerce.

5. On May 8, 1973, Respondent operated and [*26] controlled a certain trench at the above-described worksite, the trench measuring 12 feet long, 2 feet wide, about 6-1/2 feet deep at the curb and 9-1/2 feet at the center of the street; the sides were not sloped, shored, or otherwise supported.

6. The soil in the trench was basically clay, an unstable or soft material, and the soil was damp on that day.

7. One side of that trench collapsed on May 8, 1973, trapping two of Respondent's employees, taking the life of one of them.

8. The foreman absented himself from the worksite for 45 to 60 minutes to go to a supply house in order to obtain parts necessary to repair a broken water line which leaked into the trench; the trench cave-in occurred during the foreman's absence.

9. The foreman knew the safeguarding requirements of 29 C.F.R. 1926.652(b), but did not leave instructions for the said two employees when he left; he thought that it should take 30 to 45 minutes for the backhoe operator to dig the trench, whereas he expected to be away no longer than 15 minutes; he was unexpectedly delayed at the supply house when the parts he needed were not easily located.

10. Respondent's foreman did not order the two employees to work [*27] in the unprotected trench, and he did not expressly permit them to do so.

11. One of the two employees (the survivor) who entered the trench did so on his own because he wished to get through work soon enough to be able to go fishing with a friend who was waiting for him at the trench.

12. Since the foreman did not know the work experience or work habits of the two employees, one of them having been hired that morning and the other having worked for him only a matter of some days, the foreman should have left specific orders for the men not to work in the trench until his return or until the trench sides were properly shored, sloped or otherwise appropriately supported.

13. Respondent, acting through its foreman, is responsible for the exposure of its two employees to the hazardous condition in the trench and was, therefore, in violation of 29 C.F.R. 1926.652(b) on May 8, 1973.

14. Respondent did not intentionally, knowingly or voluntarily fail to comply with the standard, nor did it deliberately disregard the standard or act with utter indifference to its requirements.

15. Respondent's violation was of a nonserious nature.

16. A penalty of $800 for the violation is reasonable, [*28] considering the size of Respondent's business, the gravity of the violation, good faith of the employer, and the history of previous violations.

Conclusions of Law

1. Respondent is and at all times pertinent herein was engaged in a business affecting commerce, and the Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter within the contemplation of 29 U.S.C. 652 and 653(a).

2. Respondent violated 29 U.S.C. 654(a)(2) on May 8, 1973, for failure to comply with the safety standard at 29 C.F.R. 1926.652(b), but was not in willful violation thereof.

3. Respondent was not charged with a serious violation under 29 U.S.C. 666(k).

4. Respondent's violation was of other than a serious nature.

5. A penalty of $800 for said other than serious violation is appropriate, pursuant to 29 U.S.C. 666(c) and (j).

Order

IT IS ORDERED that the willful portion of the citation issued on May 18, 1973, be and the same hereby is VACATED; that the citation be and the same hereby is AFFIRMED for a nonserious violation; and that the proposed penalty of $8,000 be and the same hereby is reduced to $800.

ABRAHAM GOLD, Judge, OSHRC [*29]

Dated: SEP 30, 1974

Boston, Massachusetts